(i)graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;

(ii)graphic or lascivious simulated;

(I)bestiality;

(II)masturbation; or

(III)sadistic or masochistic abuse; or

(iii)graphic or simulated lascivious exhibition of the genitals or pubic area of any person;

(5)“visual depiction” includes undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image, and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format;

(6)“computer” has the meaning given that term in section
1030 of this title;

(7)“custody or control” includes temporary supervision over or responsibility for a minor whether legally or illegally obtained;

(8)“child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

(A)the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B)such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

(C)such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

(9)“identifiable minor”—

(A)means a person—

(i)

(I)who was a minor at the time the visual depiction was created, adapted, or modified; or

(II)whose image as a minor was used in creating, adapting, or modifying the visual depiction; and

(ii)who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and

(B)shall not be construed to require proof of the actual identity of the identifiable minor.

(10)“graphic”, when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted; and

(11)the term “indistinguishable” used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.

2008—Par. (5). Pub. L. 110–401struck out “and” before “data stored” and inserted “, and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format” before semicolon at end.

Par. (8)(D). Pub. L. 108–21, § 502(a)(3), struck out subpar. (D) which read as follows: “such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct; and”.